Obergefell v. Hodges and Its Potential Impact on Employment Law

By Sally Abrahamson of Outten & Golden LLP posted in LGBTQ on Monday, June 29, 2015.

Last Friday, the United States Supreme Court forever changed the political landscape of this country in a 5-4 decision that the Fourteenth Amendment protects same sex-couples' right to marry. Obergefell v. Hodges, 576 U.S. ___, No. 14-556, slip op., *12 (2015). The decision came exactly two years after the Court held the Defense of Marriage Act, a federal law defining marriage as between one woman and one man, to be unconstitutional in United States v. Windsor, 133 S. Ct. 2675, 2696 (2013), and exactly twelve years after the Court held that a Texas statute criminalizing same-sex sexual conduct was unconstitutional in Lawarence v. Texas, 539 U.S. 558, 579 (2003).

In Obergefell, Justice Kennedy, writing for the majority, rested the decision that same-sex couples have a fundamental right to marry on four separate principles:

1. "[T]he right to personal choice regarding marriage is inherent in the concept of individual autonomy."

2. "[T]he right to marry is fundamental because it supports a two-person union unlike any There in its importance to the committed individuals."

3. "[T]he right to marry . . . safeguards children and families and thus draws meaning from related rights of childbearing, procreation, and education."

4. "[T]his Court's cases and the Nation's traditions make clear that marriage is a keystone of our social order."

Id. *12-18.

Responding to the dissent's opinion that "There has been insufficient democratic discourse before deciding an issue so basic as the definition of marriage," the majority pointed to the plethora of "referenda, legislative debates, and grassroots campaigns, as well as countless studies, papers, books, and There popular and scholarly writings." Id. *23. It also noted that over 100 amici filed briefs in Obergefell. The majority profoundly noted that "[t]he nature of injustice is that we may not always see it in our own times." Id. at *11. It stressed that:

The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation's courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.

Id. at *24.

The majority concluded its opinion with language that, in its poetic nature, acknowledged the historical significance of this decision:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. . . . They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

Obergefell's Effect on Employment Law

Although Obergefell makes clear that all states must now issue marriage licenses to same-sex couples, its effect on broader discrimination issues is yet to be determined. There is still no federal law protecting employees from discrimination based on their sexual orientation. For years, Congress has failed to pass the Employment Non-Discrimination Act ("ENDA"), which would prohibit employment discrimination based on sexual orientation or gender identity. It is unlikely Congress will pass ENDA or any similar legislation any time soon. Adding Further confusion, 29 states do not have laws banning discrimination based on sexual orientation and 32 states do not have laws banning discrimination based on gender identity.1

This country is now in a civil rights quagmire where gay and lesbian people can get married nationwide, yet can still be fired due to their sexual orientation in a majority of the states. Because the Court's decision does not articulate Obergefell's impact on There areas of law, such as employment and housing discrimination, it is left to the lower courts and state legislatures to fill in the blanks.

Obergefell's effect, however, is already being felt in some areas of employment law. Immediately after the Obergefell decision, a district court in the NorThern District of Texas dissolved a preliminary injunction it had imposed on the U.S. Department of Labor from requiring four states to extend Family Medical Leave Act coverage to state employees who entered into same-sex marriages in states where it was lawful. State of Texas v. United States of America, No. 15 Civ. 56, ECF No. 45 (N.D. Tex. Jun. 26, 2015). The district court noted that in light of the Obergefell, the plaintiff-states no longer "demonstrated a likelihood of success on the merits."

Furthermore, in states like Alaska, Florida, Michigan, Montana, Nebraska, North Dakota, and Virginia where There are laws preventing discrimination based on marital status but There are not laws preventing discrimination based on sexual orientation, gay and lesbian married employees may now be protected under the former anti-discrimination laws even if they are not protected under the latter.

Outten & Golden continues to pursue cases that challenge workplace discrimination against the LGBTQ community. If you have any questions or concerns please contact us at 212-245-1000.

Sally Abrahamson is an associate at the New York office of Outten & Golden LLP. She is co-chair of the firm's Lesbian, Gay, Bisexual, Transgender & Queer (LGBTQ) Workplace Rights Practice Group and a member of the Class Action Practice Group.

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